Herstein v. Kemker

• Decision Date: 10 January 1936
• Parties: HERSTEIN et al. v. KEMKER.
• Court: Tennessee Court of Appeals

94 S.W.2d 76

19 Tenn.App. 681

HERSTEIN et al. v. KEMKER.

Court of Appeals of Tennessee, Western Section.

January 10, 1936

Petition for Certiorari Denied by Supreme Court May 16, 1936.

Appeal in Error from Circuit Court, Shelby County; Ben. L. Capell Judge.

Actions by Mrs. W. R. Herstein and by W. R. Herstein against G. H Kemker and another, which were tried together. Judgments for the named defendant, and the plaintiffs appeal in error.

Reversed and remanded for new trial.

Armstrong McCadden, Allen, Braden & Goodman, H. H. Barker and Charles G. Morgan, all of Memphis, for plaintiffs in error.

Lowell W. Taylor, of Memphis, for defendant in error.

FAW Presiding Judge.

Two cases, brought and docketed separately, were, by order of the court, tried together to a jury in division 2 of the circuit court of Shelby county, and have been brought to this court in one transcript, with a single bill of exceptions, and docketed here under the above style.

In one of the two cases Mrs. W. R. Herstein (sometimes described in the record as Mrs. Irene Herstein) was the plaintiff, and her husband, W. R. Herstein, was the plaintiff in the other case. The defendants in each of the two cases were the same, viz., G. H. Kemker, a resident citizen of the city of Memphis, and the Newberger Company, a Tennessee corporation with its situs in Memphis.

In the course of the trial below, and before the close of the evidence, the plaintiffs took a voluntary nonsuit in their respective cases against the Newberger Company, and the cases were finally tried to the jury against G. H. Kemker as the sole defendant.

It is an admitted fact on the record that Mr. and Mrs. Herstein were struck, practically at the same time, by an automobile driven by defendant Kemker, and it also appears, without dispute in the evidence, that each of the plaintiffs suffered serious, painful, and probably permanent, personal injuries as the result of the collision.

Averring that her injuries were proximately caused by negligence of defendant Kemker, in the particulars stated in her declaration, Mrs. Herstein sued defendant Kemker for $30,000 as damages, both actual and punitive, for her personal injuries; and, upon averments of the same negligence, W. R. Herstein sued for $30,000 as damages, both actual and punitive, for (1) personal injuries to himself, and (2) loss of services of his wife, and expense of medical, hospital, ambulance, and nurse's and doctor's bills incurred "in an effort to have his wife cured."

To each of the declarations, the defendants filed two pleas, viz.: (1) The general issue of not guilty, and (2) that the plaintiff's injuries, if any, were received as a direct and proximate result of the plaintiff's own contributory negligence. Later, in obedience to an order of the trial court, made on motion of plaintiffs, requiring defendants to "specially plead their affirmative defenses," the defendants filed a statement of certain special defenses, to which more particular reference will be hereinafter made.

After the close of the plaintiffs' evidence in chief and during the examination of defendant Kemker as the first witness in his behalf, the plaintiffs were permitted to "withdraw any claim for punitive damages."

The two cases were submitted to a jury upon evidence on behalf of the plaintiffs and defendant Kemker, respectively, argument of counsel for the respective parties, and the charge of the court, whereupon the jury found "for the defendant," and the court rendered judgment in each of the two cases that the defendant go hence and recover of the plaintiff and the plaintiff's surety the costs of the cause. In due season, each of the plaintiffs filed a motion for a new trial which was overruled by the trial court, and the plaintiffs, separately, excepted to the action of the court and prayed an appeal in the nature of a writ of error to this court, which was granted by the trial court and perfected by the respective plaintiffs. The case has been heard by this court on the record, with assignments of error on behalf of Mr. and Mrs. Herstein, and excellent briefs and oral arguments by able counsel for the parties, respectively.

For convenience, we will continue to refer to Mr. and Mrs. Herstein as plaintiffs, and to G. H. Kemker as defendant.

It is not claimed, either through an assignment of error or otherwise, that there is no evidence to support the verdict of the jury, and, in their brief, plaintiffs' counsel disclaim an intention to argue on this appeal the weight of the evidence; but it is strongly urged that there were sharp conflicts in the testimony of the witnesses, with respect to controlling and determinative facts, which emphasizes the asserted materiality and prejudicial effect of certain rulings of the court below, which rulings are assigned as error.

It is insisted that there was an abundance of evidence before the jury which would have sustained verdicts in favor of both plaintiffs, but it is, in effect, conceded by learned counsel for plaintiffs that it is not within the province of this court to determine the comparative weight of the evidence for the parties, respectively, and that the verdicts of the jury in these cases will not be disturbed unless there was error prejudicial to the plaintiffs in the rulings of the trial court.

However, a consideration of the evidence before the jury, in connection with the issues made by the pleadings, will be necessary in order to properly dispose of certain assignments of error; but there are other assignments of error, which challenge rulings of the court, made before the cases were taken up for trial below, which may be properly disposed of without regard to the evidence and the conduct of the trial before the jury. The several questions presented by the assignments of error will be stated and considered in the order which to us seems most convenient, rather than in the order of their assignment.

1. Mrs. Herstein's case was begun by the issuance of a summons from the circuit court of Shelby county on November 20, 1934, and her declaration was filed on that day. On the same day, the summons was issued in Mr. Herstein's case from the same court, and his declaration was also filed on that day. Mrs. Herstein's case was numbered 84,789, and Mr. Herstein's case was numbered 84,790, on the docket of said court.

The circuit court of Shelby county is divided into four parts, to be known and designated as "Division 1,2,3 and 4," with a "Circuit Judge" presiding in each division. Acts 1905, c. 102.

It is provided by section 5 of the statute just cited (and by the Acts 1907, c. 371, amendatory thereof) that "the Judges presiding in Divisions 1,2,3, and 4 of said court shall formulate such rules and regulations as may be necessary to apportion the docket of said Circuit Court between the four divisions thereof, and the Clerk of the said court will, under the rules so established, apportion and divide said docket between the four divisions, assigning to each division for trial and disposition a proper proportion of the docket." The bill of exceptions in the cases now before us contains recitals as follows:

"In the Circuit Court of Shelby County, Tennessee, when suits are filed they are regularly assigned in the order in which they are filed to the four divisions of said Circuit Court,--Divisions One, Two, Three and Four,--for trial. These assignments are made in rotation by the Circuit Judges.

"When the suits of Mrs. Irene Herstein vs. G. H. Kemker, et al., No. 84,789 T. D., and W. R. Herstein vs. G. H. Kemker, et al., No. 84,790, T. D., were filed the case of Mrs. Irene Herstein vs. G. H. Kemker, et al., No. 84,789 T. D., was assigned to Division Two of the Circuit Court, and the case of W. R. Herstein vs. G. H. Kemker, et al., No. 84,790 T. D. was assigned to Division One of the Circuit Court of Shelby County, Tennessee.

"When the calendar in Division Two of the Circuit Court was called, on the 6 day of March, 1935, the case of Mrs. Irene Herstein vs. G. H. Kemker, et al. No. 84,789 T. D., was set for trial on the 16th, day of April, 1935. When that case was called for trial on that date the case of W. R. Herstein vs. G. H. Kemker et al. No. 84,790 T. D. was still pending in Division One of the Circuit Court and had not been set for trial in that division, nor had it appeared on any calendar of cases to be called for trial in that division.

"On the 16th day of April, 1935, the following rules of the Circuit Court of Shelby County, Tennessee, were in full force and effect. ***

"All cases on the appearance docket and reference docket and cases appealed from the Magistrate's courts shall be assigned for trial by one of the Circuit Judges, the Judge assigning cases shall perform this duty during a term of court and will undertake the work in the regular order of divisions, namely, Division 1,2,3 and 4 and the cases shall be assigned by the Judges in so far as practicable so as to make the work in each division equal.

"The Judges will, from time to time, equalize the work in each division so as to keep each one of the divisions as nearly up with the work of the court as possible.

"On April 16, 1935, Judge H. W. Laughlin, Div. 4 Circuit Court, Shelby County, Tennessee, was the Judge performing the duty of assigning cases."

It further appears from the bill of exceptions that when Mrs. Herstein's case No. 84,789 was called for trial (on April 16, 1935) in division 2 of the circuit court, defendant's counsel said to the court:

"There is another case growing out of this same accident and I move the Court that you now require the two cases to be tried together. They both grow out of the same accident. Mr. Herstein is suing in one case and Mrs. Herstein suing

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